2011 Resolutions

2011 is getting off to an interesting start. The President, in his New Year's Address, has promised that the process of establishing a 'local judicial mechanism' to try the offenders of the PEV will be set in motion in earnest. The Prime Minister has taken his experiences following the 2007 general election and the National Accord on the road to the Ivory Coast, hoping to persuade the recalcitrant incumbent, Laurent Gbagbo, to relinquish power to the internationally recognised winner of the 2010 presidential election, Alasanne Ouattara. William Ruto, through his acolytes, has declared a 'permanent divorce' with Raila Odinga, and indicate that they shall use the UDM as their vehicle to realise their political ambitions in 2011. 

The five men mentioned by the Minister of State in the Office of the President for Internal Security and Provincial Administration have denied all allegations linking them to the narcotics trade. Indeed, John Harun Mwau has 'stepped aside' as assistant Minister for Transport to facilitate independent investigations. Ali Hassan Joho, William Kabogo and Ali Punjani, the Mombasa-based tycoon, have declared their innocence, going so far a to organise rallies of solidarity by their supporters. The National Assembly has approved the names of those nominated to the Constitution Implementation Commission, the Commission on Revenue Allocation and the Judicial Service Commission.

Schedule Five of the Constitution sees the following legislations being enacted before 27th August 2011:

1. On citizenship (Art. 18);

2. On the Kenya National Human Rights and Equality Commission (Art. 59);

3. On the Ethics and Anti-corruption Commission (Chapter 6);

4. On Elections (Art. 82);

5. On Electoral Disputes (Art. 87);

6. On the Independent Electoral and Boundaries Commission (Art. 88);

7. On Political Parties (Art. 92);

8. On Vacation of Office of Member of Parliament (Art. 103);

9. On the presidential power of mercy (Art. 133);

10. On system of courts (Art. 162);

11. On removal from office of judicial officers (Art. 168);

12. On vetting of judges and magistrates (Sch. 6, s. 23);

13. On speaker of the county assembly (Art. 178);

14. On urban areas and cities (Art. 183);

15. On the contingencies fund (Art. 208); and

16. On loan guarantees by the national government (Art. 213).

The newsmakers of 2011 in my estimation will be the members of the CIC and the JSC. The CIC will have to participate fully in the drafting of the legislations this year in the implementation f the Constitution and the role of the chairman, Cares Nyachae, will come in for a lot of scrutiny given the sensitive nature of their role in the process. If they are hamstrung, the way the TJRC was, they may not play a pivotal role or they may end being the lapdogs of the National Assembly. 

One of the sensitive political Bills will revolve around the issue of Recall of MPs. I do not see the National Assembly acquiescing to a Bill that gives the people overwhelming power to recall MPs without a fight. They will try and water down the first draft in order to give themselves something akin to security of tenure. It is our responsibility as Kenyans to ensure that we offer moral and material support to the CIC to see that the MPs do not overly meddle in the process. If we had the power of recall after the previous elections, we may have had the power to challenge sitting MPs accused of heinous offences or offences involving moral turpitude, such as corruption or narco-trafficking.

The JSC shall have a much tougher job. Once properly constituted and sitting, it shall be their responsibility to operate within the rules as shall be established by the legislation on the system of courts. They shall be responsible for the constitution of the Supreme Court, the Court of Appeal, the High Court and the vetting of magistrates and judges. The Constitution is silent on the maximum number of High Court Judges and it is their responsibility to ensure that we attain a sufficient number, perhaps 400 to 450, to ensure that the administration of justice does not deny people justice because of delays. 

Vetting shall continue to elicit controversy. If the vetting process is conducted in the manner of a witch-hunt a la the Ringera Radical Surgery, the JSC shall lose credibility and with that so will the Judiciary. Vetting must be done according to clear rules of procedure and maximum transparency. Vendettas by the legal fraternity must not be transferred to the JSC during vetting for I foresee lawyers agitating for the removal of Judges with whom they have had run-ins with like Lady Justice Mary Ang'awa. Due to his prominence in the Bar, Ahmednassir Abdullahi will be closely watched so that his decisions on the JSC will have a larger-than-usual impact. He must take care to leave his personal foibles at the door and ensure that he is as thoroughly professional as possible.

The International Criminal Court Pre-Trial Chamber II is considering the Prosecutor's request for summonses to issue against the Ocampo Six. If the Judges grant the prosecutor's request, it shall be a watershed moment similar to the day they were actually named. Luis Moreno-Ocampo has a fearsome reputation and the Six would be best advised to act with careful deliberation. 

However, it seems that they have an alternative plan in mind as seen by their acolytes' moves to have Kenya withdraw from the Rome Statute. It is strange that they refuse to acknowledge the position they find themselves in. According to international law experts, even of Kenya's desire to withdraw is accepted, it will not affect the status of the investigations which have already commenced. Perhaps they hope that by withdrawing from the treaty, and the success of one of their own to the presidency on 2012, they may compel the government to refuse to co-operate with the Court once summonses do issue. This is a risky gambit for it assumes that other political players with ambitions will be willing to cock a snook at the international community and prevent their arrest and transport to the Hague.

2011 promises to have its share of infamous moments. It is only a matter of time before we are truly invested in the proper implementation of the Constitution and not leave it as a preserve of the idle, and the self-interested. While the media keeps and eye on the famous and infamous political actors, we should not forget that various important Commissions and independent actors will also have an impact on national affairs and it is our duty to keep them honest. That should be our New Year Resolution.